Helena Kennedy QC has been championing the rights of women for the past 40 years, and has seen dramatic changes sweep through many aspects of our lives. But the legal system remains, in her view, a stubborn knot of injustice. In this exclusive extract from her hard-hitting new book, she exposes how we are still being discriminated against in court.
I had not been in criminal practice for long before I realised that different rules apply to men and women. In rape cases, I saw male jurors winking their support for my male client before the alleged victim had even finished her evidence. I learned quickly that the nearer I could get to painting a female client as a paragon of traditional womanhood, the more likely she was to experience mercy from a judge or a jury.
Equality does not mean expecting higher sexual morality from women than from men. It does not mean judging women on their clothing, their drunkenness, their skills as a parent, when none of those judgements are applied to males. It means recognising that, for the most part, women do low-paid work, give birth, do most of the caring within families, do not enjoy equal advancement within the workplace and live in fear of violence and abuse in a way that men do not. Doing justice requires lawyers and judges to understand the world in which we live. True justice is about more than refereeing between two sides: it is about breathing life into the rules so that no side is at a disadvantage because of sex or race or any other impediments that deny justice.
BAD V GOOD MOTHERS
In the gamut of crime, women usually commit less serious offences, yet the attitude of the court to a female accused still depends on the kind of woman she is perceived to be. A mere hint that she might be a bad mother, a bit of a whore or emotionally unstable and she is lost. When wavering between a prison sentence and a community order, many judges play the sugar-and-spice game of deciding what this little girl is made of.
Good mothers get credit from the court. Yet the principles applied in deciding whether or not someone is a good mother are essentially middle class. Pre-sentencing reports, written by people who understand this, make references to the well-kept home and the scrubbed children. If a woman’s children are in care her failure is already established, and whatever circumstances led to the separation are largely ignored.
The first case I handled was for a woman pleading guilty to shoplifting children’s clothes. I was reassured by old hands that nothing would happen to her; women always get off lightly and she would probably be fined. I arrived at court to find her in a state of great anxiety because she hadn’t been able to make arrangements for her children. I also found out that she had an outstanding suspended sentence. Like so many poor women she had no resources to pay a fine and the courts had previously given her a conditional discharge, probation and now the real McCoy. In this miserable first experience I watched my despairing client being taken off to prison weeping for her children.
When sentencing, judges typically take insufficient account of the fact that women are still the primary carers and fail to see that the sentencing system is formulated with men in mind. The number of women sent to prison has more than doubled in ten years without any real change in the nature of women’s offending; 84 per cent are held for nonviolent offences despite the constant refrain that prison should only be used for violent offenders or those committing serious crimes.
Yes, a father loses his children when he is imprisoned, but the question is whether he is the primary carer. In our family courts the philosophy is that the child comes first. Children need their parents and only in the most extreme circumstances should we break that bond. Yet in the criminal courts, and despite being legally required to consider the best interests of the child, officials often wash their hands of responsibility by saying that if her children suffer it is the criminal woman who is to blame.
SHE WASN’T ‘ASKING FOR IT’
The law has always had problems with sex. With the sexual revolution in the 1960s came the freedom of women to explore their own sexuality; yet the double standard is still present in our courts. Promiscuous behaviour by men brings little condemnation, but the idea that women are autonomous sexual beings is still too often a source of negative judgement. The double standard simmers beneath the surface in divorce, child custody and in every legal arena that women enter.
It is in rape that the law crashes up against the rawest display of this inequity. The conviction rate for rape in Britain is still the lowest of all serious crime, despite increased reporting. The word ‘no’ is at the core of a rape trial. A woman’s ‘no’ is apparently covered in ambiguity, not to be taken seriously if she is friendly and seems to be ‘up for it’; if she dresses provocatively; if she goes out late at night or has had sex with others before. It is hard to get the idea across that a woman is entitled to have sex with an entire football team but draw the line at the goalie.
When I first practised at the Bar, rape jokes used to be common at legal dinners. A lot has changed since then and there is agreement that sexual activity should be based on mutuality, with no coercion acceptable. Yet ‘victim of his libido’ is still a recurring theme. If a woman has been in any way familiar, we are presented with the old idea of man, the overheated engine, unable to switch off. We are to treat him as the equivalent of a handgun, something intrinsically dangerous that needs handling with care.
The ways that a woman can be denigrated in front of a jury are varied. She might be asked whether her vagina was naturally lubricated, implying that some gratification was found in the sexual contact. I have heard it suggested to a woman in a rape case that she had a history of mental illness. This was, in fact, a breakdown under the pressure of university finals, from which she rapidly recovered. Suggestions of instability cling to women much more readily than to men.
There are, of course, a few misguided or malicious women who make false allegations of rape and it is essential that the strong protections that exist for defendants within our system should be jealously guarded. But rape is complicated because of the confusion with genuine intimacy. If the criminal justice system was more even-handed in the way that rape is tried, women lawyers would feel less compromised by the role they are expected to play. I have defended men charged with rape and secured their acquittal. I have felt ashamed as women I am cross-examining flash angry eyes at me for betraying them. And I was sacked by a client in a sexual assault case because I said it was irrelevant that the complainant had on some previous occasion stood on a bar stool and performed a striptease.
The problems stem partly from a deep distrust of the female accuser and the fact that sexual relations are seen from a male perspective. Male lawyers and judges say that rape is an easy allegation to make and a difficult one to defend. I believe the reverse is true: the charge is hard to bring. When I ask women magistrates and lawyers what they would do if they were raped by an acquaintance, many say they would think twice before exposing themselves to the prosecution process, but it is too easy for a guilty defendant to avoid justice.
DOMESTIC ABUSE CAN HAPPEN TO ANYONE
When it comes to crime, women are more often offended against than offending. Women who kill are rare. Women being killed is the common currency. It’s women who are stalked and assaulted for no apparent reason in parks, who are usually the prey of serial killers, and female children are the ones most often murdered. On average nearly two women die as a result of domestic violence each week. Statistics show that 1.4 million women a year suffer domestic abuse and this is likely the tip of the iceberg.
In every contested criminal case I have conducted over the years involving the battering of a woman, she is accused of inflating her account and exaggerating the extent of any violence. Police, lawyers and judges still have difficulty abandoning the stereotype of the abused woman as someone who is submissive and cowed. When the woman appears competent or has a bit of gumption, or seems materially well off, there is a failure of imagination as to how she could be victimised.
Domestic abuse cuts across class, ethnicity, sexuality, age and social background. It can happen to anyone, and not all victims will show their trauma in the witness box. In almost every case in which I have been involved, the woman appears flat and unemotional, which can fail to arouse a full appreciation of her partner’s behaviour towards her. Also, women are often so filled with shame at the public exposure of what they see as their private failure that they minimise the extent of their suffering.
Understanding domestic abuse remains a challenge for the courts. To onlookers the response of the battered woman seems abnormal, but to her it is a rational response
to her abnormal circumstances. Misconceptions litter the court and are reflected in the verdicts of juries: women have ample opportunities to leave; in some perverse way they like the pain. Continuing to live with the tormentor is seen as acceptance of his behaviour. A constant question is ‘Why did you not leave?’ This is something the woman herself can never answer coherently.
Domestic abuse is about control, with fists or by seeking emotional dominance over a woman’s life: who she can be friends with, where she can go, what she can wear, how much she can spend, who she can text, when and what she can eat. Slow undermining of a woman’s sense of self wears her down until she is unable to act without permission. ‘You’re worthless’ or ‘You’re nothing without me’ are common refrains.
The toll of domestic violence is immeasurable and it is universal. I often lecture abroad on violence against women and girls and the need for legal reform. There is no country where domestic violence is not a dirty secret. And women express surprise that it’s a problem here, in Britain. They’re shocked that we, too, have violence against women behind closed doors in our respected and sceptred isle.
WRITES FOR WOMEN
Sexual inequality is a hot topic in these new and upcoming books by some influential female authors.
THE SKILLS by Mishal Husain (Fourth Estate, £16.99)
The journalist and Radio 4 Today presenter offers compelling advice for women to thrive in their careers.
YES SHE CAN by Ruth Davidson (Hodder & Stoughton, £20)
Life lessons from a range of women who share their experiences of good and bad times, and a manifesto for equality by the leader of the Scottish Conservative party.
WORK LIKE A WOMAN by Mary Portas (Bantam, £12.99)
The retail consultant and broadcaster examines how the world of employment works against women and what needs to change, drawing on her experience of workplace bullying, getting promoted and combining a career with children.
BLOODY BRILLIANT WOMEN by Cathy Newman (William Collins, £20)
The Channel 4 news presenter profiles heroic women who have played a crucial role in the dramatic transformation of women’s lives from the mid 19th century to today.
BORN LIPPY by Jo Brand (John Murray, £20)
The comedian’s guide to life as a woman, including heckling as a life skill; how to like yourself; what happens when you turn into your mother, and other things she wishes she’d known earlier.
This is an edited extract from Eve Was Shamed by Helena Kennedy, to be published by Chatto & Windus on 11 October, price £20. To order any of these books at a 20 per cent discount until 14 October, go to mailshop.co.uk/books or call 0844 571 0640; P&P is free on orders over £15.